R.P. v. L.S.

BOEHM, Justice,

dissenting in part.

I agree with the majority that the hourly rate agreed by the parties is presumptively enforceable. I also agree that the rules commonly cited as relevant to evaluating an attorney's services are not directly applicable to a guardian ad li-tem's services. But, like any attorneys' fee agreement, an agreement of a guardian ad litem, whether or not the guardian ad litem is an attorney, is subject to the reasonableness requirement that is imposed by our professional obligations. Ind. Professional Conduct Rule 1.5(a); see Rubenstein v. Rubenstein, 107 Conn.App. 488, 945 A.2d 1043, 1052 (2008) (applying the principles applicable to attorneys' fees to examine the propriety of guardian ad litem fees); Keisling v. Keisling, 196 S.W.3d 703, 729-30 (Tenn.Ct.App.2005) (same); In re Antone C., 12 Neb.App. 152, 669 NW.2d 69, 76 (2003) ("Courts are in the same position with regard to guardian ad litem services and fees as they are in the case of attorney fees"). I also agree that the agreement's provision for reimbursement of incidental expenses is enforceable, subject to the same reasonableness standard which does not appear to be in issue here.

I depart from the majority and agree with the Court of Appeals that the trial *26court may review the reasonableness of the services rendered. Even if the hourly rate agreed is reasonable, a fee agreement is not a blank check for the attorney to fill in the amount of services rendered irrespective of the need for services. See Trinkle v. Leeney, 650 N.B.2d 749, 754 (Ind.Ct.App.1995) ("Reasonable fees are not necessarily determined by the terms of the attorney-client contract."); Restate, ment (Third) of the Law Governing Low-yers § 34 (2000) (setting forth the principle that "[a] lawyer may not charge a fee larger than is reasonable in the cireum-stances" and stating that "in fee disputes between lawyer and client, a fee will not be approved to the extent it violates [this principle] even though the parties had agreed to the fee"). Moreover, the trial court is in the best position to determine the extent to which the services rendered were in fact required or useful. Venture Enters. Inc. v. Ardsley Distribs., Inc., 669 N.E.2d 1029, 1033 (Ind.Ct.App.1996) ("Since the judge is considered an expert, our decisions continue to adhere to the view that he may judicially know what constitutes a reasonable fee").

Here the trial court made that determination and found that much of what was done by the guardian ad litem duplicated the services of other attorneys. As the majority observes, in a multiparty proceeding services of attorneys for some parties may duplicate those rendered by attorneys for others. But whether that duplication is reasonable is a factual proposition best evaluated by the trial court. See Keisling, 196 S.W.3d at 731 ("[TJhe trial court is in the best position to determine whether the [guardian ad litem's] services were of assistance to the court.").

I do not agree with the Court of Appeals that an attorney functioning as guardian ad litem is required to bill separately for legal and nonlegal services. Here the parties agreed on an hourly rate of $150 that the attorney says is approximately two thirds of her normal hourly rate as an attorney. If the parties choose to agree on a blended hourly rate that reflects both legal and non-legal services, I would find that presumptively valid.

I would affirm the trial court.